Important judgment on applications to intervene in cases involving preliminary references

24/10/14

Mr Justice Turner gave judgment today ([2014] EWHC 3515 (Admin)) on an application by the Polish National Association of Tobacco Growers (Krajowy Zwiazek Plantatorów Tytoniu “KZPT”) to intervene in a challenge brought by British American Tobacco UK Ltd (“BAT”) to the validity of EU Directive 2014/40/EU, which regulates tobacco products.

KZPT wished to become a party to the proceedings pursuant to CPR 54.17 and to be entitled to participate in any preliminary reference that may be made to the Court of Justice of the European Union. 

KZPT’s application was supported by the Claimant, BAT, but opposed by the Defendant to the proceedings, the Secretary of State for Health.

Turner J refused KZPT’s application, but granted permission to BAT to rely on the evidence adduced by KZPT in the proceedings. 

The judgment applies the ruling of the CJEU in its Order of 16 December 2009 in Joined Cases C-403/08 and C-429/08 Football Association Premier League v QC Leisure.  Turner J considered that the connection between the legitimate interests of KZPT and the UK was very tenuous and that merely having an interest in the outcome of any preliminary reference procedure was not sufficient to justify an intervention.  The fact that KZPT cannot challenge the Directive in the Polish courts did not tip the balance in favour of allowing the intervention.  The Judge found that “care must be taken not to encourage those from other member states with little connection with this jurisdiction to use UK procedural machinery as a way of circumventing the adverse consequences to them of more restrictive rules of review within the jurisdiction of their own national court” (para 23).

The Judge also considered that a person given leave to intervene in proceedings under CPR 54.17 would not necessarily qualify as a party to those proceedings for the purposes of any preliminary reference procedure.

The judgment is here.

Judgment